“It really requires a very robust response, not only in the context of some kind of
prosecution or civil lawsuit but in terms of the professions themselves that have to insist
upon a level of accuracy, of honesty, and really need to impress upon people who are
part of their profession that their role in leading the public discourage is absolutely vital
to our national health, to our democratic health, and without it, we really devolve into
chaos.” 63
Rubin added that, to combat disinformation in court, “every profession has to police their own.” Courts should
hold litigants and lawyers accountable for initiating cases involving baseless and frivolous claims by imposing
sanctions and, therefore, deterring future violations while simultaneously guaranteeing the proportionality of
remedies. Additionally, bar associations should remind their lawyer members of the legal code of ethics and
consequences in cases of misconduct.
In England, the Bar Standards Board (BSB) in September 2023 64 revised its 2017 guidance for barristers using
social media. The guidance updates the types of behavior 65 that would be breaches of barristers’ professional
ethics, specifically citing comments on social media that would be of “… indecent, obscene, or menacing
character or which are gratuitously abusive [emphasis added]” 66 and further “[c]omments about judges, the
judiciary, or the justice system which involve gratuitous attacks or serious criticisms that are misleading and do
not have a sound factual basis. [emphasis added].” 67
As the case law discussion demonstrates, courts are moving to impose serious fines and other sanctions on
lawyers who bring frivolous cases to court. If justice is to function smoothly, good relations between lawyers and
judges are absolutely vital. While professional bodies will continue to revise and update professional codes of
conduct, judges likely will have to continue delivering stern sanctions to lawyers who act outside the bounds of
professionally expected conduct, particularly when supported by powerful political actors.
Issue 3: Innovations and Institutional Reforms
for Courts to Consider
As the cases in this paper illustrate, judges must be prepared to tackle attacks on the integrity of information both
in election petitions and as part of wider campaigns against the courts and individual judges before, during, and
after elections. In the new information environment, judges may need to reconsider traditional legal ideals of not
engaging publicly in political debates for fear of demonstrating bias or conflicts of interest. Speaking through case
National Center for State Courts. (2022, September 22). Today’s Disinformation Threats [webinar][select from dropdown menu].
The National Center for State Courts is an independent, non-profit organization that promotes the rule of law and improves the
administration of justice in state courts and courts around the world. It is based in Williamsburg, Va., with its International Division in
Arlington, Va.
64
Bar Standards Board. (2023, September 20). BSB guidance for barristers using social media.
65
It is of interest to note that, in the guidance, the BSB recognizes that there is a balance between Article 10 of ECHR and “other
rights and values protected by the ECHR (such as the rights and reputations of other members of the profession or consumers of
barristers’ services).” Id. at p. 2.
66
Id. at p. 5.
67
Ibid.
63
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